Re Magistrate M S King
[2015] WASC 394
•20 OCTOBER 2015
RE MAGISTRATE M S KING; EX PARTE JACKSON [2015] WASC 394
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 394 | |
| 20/10/2015 | |||
| Case No: | CIV:2595/2015 | 13 OCTOBER 2015 | |
| Coram: | MITCHELL J | 13/10/15 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | GEORGE NEVILLE JACKSON |
Catchwords: | Judicial review Application for review order No arguable ground of jurisdictional error identified Turns on own facts |
Legislation: | Dividing Fences Act 1961 (WA), s 15 Magistrates Court Act 2004 (WA), s 36 |
Case References: | Basell v Meredith (Unreported, WASC, Library No 970449, 9 September 1997) Craig v The State South Australia (1995) 184 CLR 163 Jackson v Chrisp [2012] WASCA 158 Jackson v Chrisp [2013] WASC 380 Laing O'Rourke Australia Construction Pty Ltd v Samsung C & T Corporation [2015] WASC 237 Palmer v Lynott [1981] WAR 157 Re Temby; Ex parte Stanton [2015] WASC 357 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
GEORGE NEVILLE JACKSON
Applicant
Catchwords:
Judicial review - Application for review order - No arguable ground of jurisdictional error identified - Turns on own facts
Legislation:
Dividing Fences Act 1961 (WA), s 15
Magistrates Court Act 2004 (WA), s 36
Result:
Application dismissed
Category: B
Representation:
Counsel:
Applicant : In person
Solicitors:
Applicant : In person
Case(s) referred to in judgment(s):
Basell v Meredith (Unreported, WASC, Library No 970449, 9 September 1997)
Craig v The State South Australia (1995) 184 CLR 163
Jackson v Chrisp [2012] WASCA 158
Jackson v Chrisp [2013] WASC 380
Laing O'Rourke Australia Construction Pty Ltd v Samsung C & T Corporation [2015] WASC 237
Palmer v Lynott [1981] WAR 157
Re Temby; Ex parte Stanton [2015] WASC 357
- MITCHELL J:
(This judgment was delivered extemporaneously and has been edited from the court's record of the decision.)
Application
1 This application for a review order under s 36 of the Magistrates Court Act 2004 (WA) forms part of a long-running dispute between Mr Jackson and his neighbours in relation to a dividing fence between properties at 20 and 22 Heather Road, Roleystone.
2 The background of the dispute is to be found in the decision of the Court of Appeal in Jackson v Chrisp,1 and also the decision of Allanson J in Jackson v Chrisp.2
3 The application is supported by an affidavit of Mr Jackson dated 5 October 2015. Mr Jackson, who appears without legal representation, has not included much of the material which would ordinarily found an application for a review order. However, I am satisfied that the material advanced is sufficient to enable me to deal with the application.
4 Subsequent to the proceedings before the Court of Appeal and Allanson J, it appears that Ms Chrisp made an application under s 15(4) of the Dividing Fences Act 1961 (WA)(the Act). This application was determined in part by orders made by the Magistrates Court on 25 August 2015. I do not have a copy of the original orders, but they are said to be in the following terms in Mr Jackson's affidavit:
1. The court determines that the dividing fence between the parties' properties at 20 and 22 Heather Road Roleystone is in need of repair.
2. The court determines that the repair should take the form of the erection of a Colorbond fence in accordance with Schedule 1 of the City of Armadale Fencing Local Law 2011 from the council verge to the commencement of the original cyclone portion of the dividing fence that remains in good repair, ie to near the existing shed on the claimant's property shown in Exhibit 1, page 9 namely at the termination of the new fence erected by the defendants this year.
3. The court determines that a boundary survey be conducted to facilitate the erection of the new portion of the dividing fence.
5 The orders then make provision for quotes to be obtained and for the matter to be adjourned to 14 October 2015 at 9.30 am (ie, tomorrow). Hence, it has been necessary to bring on and determine this application urgently.
6 Orders 1 and 2 of the Magistrates Court are apparently made under s 15(5)(a) and s 15(5)(b) of the Act, which relevantly provide that:
The court on an application made pursuant to subsection (4) may by order determine:
(a) whether the fence is in need of repair;
(b) if so, the kind and extent of repairs and by whom the repairs are to be effected and the period within which they are to be carried out[.]
7 Order 3 appears to be made in contemplation of a possible order under s 15(5)(c) of the Act, which enables the court (if the court thinks it is necessary) to determine the line upon which the repairs are to be effected.
8 Section 15 of the Act is located in pt III of the Act, which deals with the repair of dividing fences. The term 'repair' is defined in s 5 of the Act to include to 're-erect' and 're-align'. I also note that pt II of the Act deals with the construction of dividing fences and the manner in which owners may share in the costs of constructing fences between their properties.
9 The operation of the Act generally is discussed in some detail by Murphy JA in Jackson v Chrisp:3
It is notable that s 15(5) does not refer to the making of any orders for payment for repairs. Rather, the purpose of s 15(5) is, in effect, to determine whether repairs are needed, and to delineate the nature and scope of the repairs and their location (s 15(5)(a), s 15(5)(b) and s 15(5)(c)) and once those matters have been determined and delineated, to empower the making of ancillary compensation orders in relation to the costs of realignment and loss of occupation (s 15(5)(d) and s 15(5)(e)).
Once orders have been made under s 15(5), with respect to a dispute under s 15(4), the cost of repairs is to be shared in equal proportions by virtue of s 14. In this way, s 14 operates in conjunction with s 15(5) so that an owner 'is, in pursuance of this Act, required or liable to pay', 'moneys' within the meaning of s 18(1). Those moneys may be 'sued for and recovered in any court of competent jurisdiction': s 18(1). Section 18(1) refers to 'any court of competent jurisdiction' and not just the Magistrates Court. This is presumably on the basis that the moneys in question might, conceivably, exceed the jurisdictional limit of the Magistrates Court, depending on the size, nature and location of the fence.
Need to demonstrate jurisdictional error or error of law on the face of the record
10 As Murphy JA noted in Jackson v Chrisp, an order made under s 15(5) is final and so there is no appeal from such an order. However, as the decision of Allanson J in Jackson v Chrisp illustrates, the absence of an appeal does not prevent this court from exercising the judicial review jurisdiction conferred by s 36 of the Magistrates Court Act 2004 (WA).
11 Section 36(1) of the Magistrates Court Act relevantly provides:
If a person is or would be aggrieved by one or more of the following:
…
(c) an act, order or direction done or made by a Court officer -
(i) on the ground that it was done or made without jurisdiction or power or is an abuse of process; or
(ii) on any ground that might have justified an order of certiorari,
the person may apply to the Supreme Court for an order (a review order) that requires the Court officer and any person who will be affected by the act, order or direction to satisfy the Supreme Court at a hearing that the act, order or direction should or should not be done or made or set aside, as the case requires.
12 The proper construction and operation of s 36 of the Magistrates Court Act was considered recently by Beech J in Re Temby; Ex parte Stanton.4 His Honour said:
The proper construction and operation of s 36 of the Magistrates Court Act was explained by McLure JA (Buss & Newnes JJA agreeing) in Rayney v AW. The power in s 36 of the Magistrates Court Act is a judicial review power. The power in s 36(4) to grant relief is only enlivened if one or more of the grounds listed in s 36(1)(a), (b) or (c) has been established. A review order can only be made if the threshold for an error of a type identified in s 36(1)(a), (b) or (c) is satisfied.
As to the threshold, I think the appropriate analogy for the test for determining whether a review order should issue is with an application for an order nisi.
That means that it is necessary for Mr Stanton to establish, at least, an arguable case that an error of a type identified in s 36(1)(a),(b) or (c) was made. (footnotes omitted)
13 Beech J then followed the approach, adopted in many cases, of deciding to make a review order or order nisi only if satisfied that the applicant's case had reasonable prospects of success.5 He also discussed6 the concept of jurisdictional error, particularly where a court is concerned, by reference to what the High Court said in Craig v The State of South Australia.7 I also discussed the concept of jurisdictional error in Laing O'Rourke Australia Construction Pty Ltd v Samsung C & T Corporation.8
14 The applicant in this case alleges jurisdictional error on three grounds.
Ground 1: repair vs replacement
15 The first ground, as I understood it, is that the magistrate's order requires the replacement of a section of cyclone fencing with a Colorbond fence. This is said to be beyond the magistrate's power on the ground that what is ordered is the replacement, rather than the repair, of the fence.
16 For that proposition the applicant relies on a decision of Heenan J in Basell v Meredith,9 and cases referred to by Heenan J in his reasons for decision, including Palmer v Lynott.10 In Palmer, Wallace J decided that notwithstanding that a pre-existing fence was entirely replaced with a new fence, there was still a 'repair' within the terms of the Act.
17 In Basell, Heenan J went on to explain that in his view, the erection of a new fence of a different character to the old was not a repair or renewal of the old fence, but rather was the erection of a new structure. Because Basell involved the substitution of a wooden picket fence with a brick wall, Heenan J thought that the provisions of pt III of the Act had no application, and that if anything it would be pt II of the Act which would apply.
18 What those decisions illustrate is that the difference between a repair and a replacement may be a question of degree. On an appeal of a kind available when Basell was decided, that question would be resolved by the court. However, as the Act now stands, there is no right of appeal from a magistrate's decision under s 15(5).
19 In my view, the Magistrates Court, as an inferior court, has authority to determine at least some questions of law, whether rightly or wrongly. In any event, without being provided with the magistrate's reasons, it is not evident to me that the magistrate has misconstrued the term 'repair' (even if such a misconstruction would constitute a jurisdictional error of law, which I doubt).
20 So, I am not persuaded that it is reasonably arguable that, on the evidence before me, the magistrate made any jurisdictional error of law in relation to the concept of repair which would vitiate his decision.11
Ground 2: procedural fairness
21 Secondly, it was contended that the order which was made by the Magistrates Court exceeded what had been applied for in requiring the fence to be constructed to the council verge, rather than 2 m from the car port.
22 If it had been established that the applicant was denied procedural fairness by being given no opportunity to make submissions or adduce evidence about the extension of the fence to the council verge, then jurisdictional error would be established. However, in his submissions before me, the applicant properly conceded that he had been given and had taken the opportunity to address that issue in the course of the Magistrates Court proceedings. Therefore, I am not satisfied that any jurisdictional error is established on this ground.
Ground 3: inconsistency with local law
23 Thirdly, it is said that the order made by the Magistrates Court requires a Colorbond fence to be constructed at 1.8 m height to the council verge. This, it is contended, would be inconsistent with the Fencing Local Law 2011 made by the City of Armadale under the Act and the Local Government Act 1995 (WA). Such an inconsistency, which would appear on the face of the order, would arguably constitute an error of law on the face of the record, if not a jurisdictional error.
24 Clause 3.1(1) of the Fencing Local Law provides:
On a Residential Lot, a fence erected within the street setback area shall be visually permeable above 1200 mm and not exceed a height of 1800 mm.
25 The 'street setback area' has a meaning given to it for the purposes of the Residential Design Codes applicable in Western Australia. The applicant contends, and I will accept for the purposes of this application, that the 'street setback area' is a point roughly in front of the house, and so within the area in which the fence is to be erected.
26 The difficulty I have with the applicant's submission is not with the requirements of the Fencing Local Law, but with the requirements of the magistrate's order. I am not satisfied that the order does require a fence to be constructed in a manner which is inconsistent with the Fencing Local Law.
27 Order 2 expressly requires the erection 'to be in accordance with sch 1 of the City of Armadale Fencing Local Law of 2011'. Schedule 1 identifies a number of different types of fences and prescribes design features for them. In relation to Colorbond metal fencing systems, it provides that they should be:
(a) erected in accordance with the manufacturer's specifications and instructions; and
(b) having a height of at least 1800 mm up to 2100 mm including screening, except within the street setback area which is subject to the requirements outlined in clause 3.1.
28 It is clear that cl 3.1 of the Fencing Local Law is incorporated in sch 1 to that by-law, which is in turn incorporated in the terms of the magistrate's order. Therefore I am not satisfied that it is reasonably arguable that the order is inconsistent with cl 3.1(1) of the by-law.
Conclusion
29 For those reasons, I am not satisfied that the material produced before me establishes any arguable ground for setting aside the magistrate's decision. I therefore refuse to make the review order.
1Jackson v Chrisp [2012] WASCA 158.
2Jackson v Chrisp [2013] WASC 380.
3Jackson [50] - [51].
4Re Temby; Ex parte Stanton [2015] WASC 357 [33] - [35].
5Temby[36].
6Temby [55]; see also [39] as to error of law on the face of the record.
7Craig v The State South Australia (1995) 184 CLR 163.
8Laing O'Rourke Australia Construction Pty Ltd v Samsung C & T Corporation [2015] WASC 237 [96] - [105], [201] - [208].
9Basell v Meredith (Unreported, WASC, Library No 970449, 9 September 1997).
10Palmer v Lynott [1981] WAR 157.
11 The error asserted clearly does not appear on the face of the record before me.
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